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JOURNAL OF INTERNATIONAL LAW & POLICY VOL. III A student-run publication at the University of Pennsylvania
3 J. INT’L L. & POL’Y 6:1 (2006)
Comment TODAY ’S L IVING , TOMORROW ’S DEAD: ANALYZING THE DUTY TO PROSECUTE OR EXTRADITE GRAVE
BREACHES OF THE GENEVA CONVENTIONS
ANTHONY CIOLLI*
INTRODUCTION..................................................................................................... 6:1 I. THE DUTY TO PROSECUTE OR EXTRADITE: A BRIEF OVERVIEW .................. 6:2
A. The Geneva Conventions........................................................................... 6:3 B. Other Treaties & Agreements.................................................................... 6:5
II. REASONS FOR NON-COMPLIANCE............................................................. 6:6 A. The Economics of Justice........................................................................... 6:6 B. Counterarguments.................................................................................... 6:10
III. WHY TRADITIONAL INTERNATIONAL LAW ENFORCEMENT MECHANISMS
HAVE FAILED ......................................................................................................6:14 A. Public Opinion......................................................................................... 6:15 B. Reciprocity & Reprisals........................................................................... 6:18 C. Maintenance of Discipline....................................................................... 6:19 D. National Implementing Measures............................................................ 6:20 E. Dissemination of Humanitarian Law....................................................... 6:21 F. International Committee of the Red Cross............................................... 6:21 G. Diplomatic Intervention........................................................................... 6:22
CONCLUSION....................................................................................................... 6:23
INTRODUCTION
The overarching purpose of international humanitarian law is to minimize
the horrors of war as much as possible.1 By adhering to international
* B.S. Cornell University, 2003; M.A. Queens College, 2004; J.D. candidate, University of Pennsylvania Law School, 2007; Chief Education Director, AutoAdmit.com. 1 See, e.g., UNIVERSITY OF NEBRASKA AT LINCOLN, HUMAN RIGHTS & HUMAN DIVERSITY, http://www.unl.edu/HumanR/teach/01/0104/0104_02.htm [hereinafter UNL] (explaining the purpose of international humanitarian law).
Journal of International Law & Policy
6:2
humanitarian law, nation-states seek to “preserve a measure of humanity even
during conflicts.”2 Virtually all of the provisions in the Geneva Conventions and
other international humanitarian law treaties further this general goal, both in
theory and as applied in practice. After all, very few would argue that a
prohibition of the willful killing of civilians does not attempt to make wars more
humane, and does not serve as a deterrent at least some of the time.
Some international humanitarian law provisions, however, do not have
this sort of positive impact. In fact, some international humanitarian law
principles may actually encourage war and result in even greater death and
suffering among military and civilian populations. The duty to prosecute or
extradite individuals accused of grave breaches of the Geneva Conventions is one
such principle.3 This provision, while theoretically furthering international
humanitarian law’s overarching goal, may actually have the opposite effect if
nations chose to abide by it. This Comment will examine why full compliance
with the duty to prosecute or extradite creates undesirable outcomes, and why
traditional international humanitarian law enforcement mechanisms have failed to
motivate the United States to comply with this duty. Because the duty to
prosecute or extradite produces outcomes that are at odds with the primary
purpose of the Geneva Conventions and international humanitarian law,4 the
international community should amend the Geneva Conventions to eliminate this
duty, rather than attempt to convince nations to comply.
I. THE DUTY TO PROSECUTE OR EXTRADITE : A BRIEF OVERVIEW
Not all violations of international humanitarian law require a nation-state
to prosecute or extradite individuals who have been accused of committing such
2 Id. 3 See Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 146, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. 4 UNL, supra note 1.
Comment: Today’s Living, Tomorrow’s Dead
6:3
violations.5 In fact, scholars have generally interpreted some provisions of major
international treaties as requiring prosecution or extradition only “in a few
narrowly defined situations.”6 However, when these situations arise, a nation’s
“failure to prosecute can amount to an international breach.”7 This section briefly
summarizes the situations where international humanitarian law requires nations
to prosecute or extradite individuals for violations
A. The Geneva Conventions
The four Geneva Conventions, which apply to international armed
conflicts involving two or more nation-states,8 differentiate between “grave
breaches” and other violations.9 Each of the Geneva Conventions specifically
states that “willful killing, torture or inhuman treatment, including biological
experiments, willfully causing great suffering or serious injury to body or health”
are grave breaches.10 Geneva Conventions I, II, and IV also include the
“extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly” in the definition of “grave
breach.”11 Geneva Convention III makes it a grave breach to “compel[] a prisoner
5 For instance, the Geneva Conventions do not require prosecution and extradition for violations that take place in civil wars or other internal armed conflicts, or in international conflicts where hostilities are sporadic or isolated. 1125 U.N.T.S. 609, 614. 6 These narrowly defined situations include serious international crimes, such as genocide. See Michael P. Scharf, From the eXile Files: An Essay on Trading Justice for Peace, 63 WASH. &
LEE L. REV. (forthcoming 2006), available at http://ssrn.com/abstract=799004. 7 Id. 8 See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]; Geneva Convention IV, supra note 3. 9 See Geneva Convention I, supra note 8, art. 50; Geneva Convention II, supra note 8, art. 51; Geneva Convention III, supra note 8, art. 130; Geneva Convention IV, supra note 3, art. 147. 10 Id. 11 Geneva Convention I, supra note 8, art. 50; Geneva Convention II, supra note 8, art. 51; Geneva Convention IV, supra note 3, art. 147.
Journal of International Law & Policy
6:4
of war to serve in the forces of the hostile Power, or [to] willfully depriv[e] a
prisoner of war of the rights of fair and regular trial.”12 Geneva Convention IV
further states that it is a grave breach to unlawfully deport, transfer, or confine a
protected person, to deprive a protected person of the right to a “fair and regular
trial,” and to take hostages.13
Nation-states that are signatories of the Geneva Conventions are obligated
to search for and prosecute those believed to have committed grave breaches.14 If
a nation-state does not wish to conduct a trial itself, it is required to extradite the
individual to a state that is willing to hold such a trial.15 The Geneva Conventions
also prohibit nation-states from granting amnesty or immunity to individuals
accused of committing grave breaches in international armed conflicts,16 although
this prohibition of amnesty does not apply to atrocities committed during civil
wars.17 Thus, one could say that signatories to the Geneva Conventions have
12 Geneva Convention III, supra note 8, art. 130. 13 Geneva Convention IV, supra note 3, art. 147. 14 See id., art 146 (“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.”). 15 INTERNATIONAL COMMITTEE OF THE RED CROSS (ICRC), THE GENEVA CONVENTION OF 12
AUGUST 1949 COMMENTARY: I GENEVA CONVENTION FOR THE AMELIORATION OF THE
CONDITION OF THE WOUNDED AND SICK IN ARMED FORCES IN THE FIELD 373 (J. Pictet ed., 1960). 16 See Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 CAL. L. REV. 451, 483-88 (1990) (summarizing how the Geneva Conventions’ requirement to prosecute or extradite has been interpreted). 17 The International Committee of the Red Cross, in its commentary to Additional Protocol II, actually encourages the use of amnesty in internal conflicts, because they are “gestures of reconciliation which can contribute to reestablishing normal relations in the life of a nation which has been divided.” YVES SANDOZ ET AL., COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 at 1402 (1987).
Comment: Today’s Living, Tomorrow’s Dead
6:5
accepted an absolute duty to prosecute or extradite those accused of being
international war criminals.18
B. Other Treaties & Agreements
Two other notable international humanitarian law treaties – the Genocide
Convention19 and the Torture Convention20 – require mandatory prosecution or
extradition for certain violations. The Genocide Convention, which, among other
things, prohibits killing, physically harming or mentally damaging “in whole or in
part, a national, ethnical, racial, or religious group,”21 requires individuals who
violate the Convention to be prosecuted in the state in which the genocide
occurred or in an international criminal court, and compels states to extradite
these individuals to states willing to prosecute them if they are unable to do so.22
Similarly, the Torture Convention requires that states either prosecute or extradite
individuals23 who commit the act of torture as is defined by the convention.24
While other international treaties, such as the International Covenant on Civil and
Political Rights,25 may strongly recommend prosecution or extradition, they do
not explicitly require states to take these actions. The following sections will
18 See generally INT’L COMM. OF THE RED CROSS, supra note 15 (exploring duties imposed by the convention). 19 Convention on the Prevention and Suppression of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951) [hereinafter Genocide Convention]. 20 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (entered into force June 26, 1987) [hereinafter Torture Convention]. 21 Genocide Convention, supra note 19, art. 2. 22 Id. art. 6. 23 Torture Convention, supra note 20, art. 6 (requiring states to extradite those accused of committing torture if they do not wish to prosecute such individuals themselves). 24 Id. art. 1 (defining torture as “any act by which severe pain or suffering… is intentionally inflicted on a person” for, among other things, obtaining information, intimidation, or punishment). 25 International Covenant on Civil and Political Rights (“ICCPR”), Dec. 19, 1966, S. Exec. Doc. E. 95-2, 999 U.N.T.S. 171.
Journal of International Law & Policy
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examine the mandatory duty to prosecute or extradite for grave breaches of the
Geneva Conventions.
II. R EASONS FOR NON-COMPLIANCE
One might wonder why a nation-state that has signed on to the Geneva
Conventions and other international humanitarian law treaties would not want to
either prosecute or extradite an individual who has been accused of committing
such horrible atrocities. In most circumstances, it is unlikely that a nation such as
the United States would object to putting a despot such as Saddam Hussein on
trial for grave breaches of the Geneva Conventions. However, there is one
situation that would give the United States or other nations a legitimate reason to
avoid compliance with the duty to prosecute or extradite: a situation where the
decision not to prosecute or extradite can avert a potential conflict and save many
lives. This section will explain the economic and moral motivations nations may
have for disregarding the duty to prosecute or extradite, and address the most
common counterarguments.
A. The Economics of Justice
One of the purposes of international humanitarian law is to deter
individuals from committing various atrocities, particularly against civilians.26 If
individuals, ranging from a common soldier to the absolute leader of an
authoritarian regime, know that they may be held accountable for their atrocities
in the future, they have an incentive to avoid committing them in the first place
(or, in the case of leaders, an incentive to prevent their subordinates from
committing them), for the failure to comply with international humanitarian law
26 UNL, supra note 1.
Comment: Today’s Living, Tomorrow’s Dead
6:7
can result in actual negative consequences.27 This argument clearly has merit:
there is little dispute that the presence of a law, along with awareness of the law
and the creation of appropriate enforcement mechanisms, will usually have some
deterrence effect,28 although the level of deterrence can greatly vary.29 However,
there are situations where the possibility of sanctions under international
humanitarian law no longer serves as a deterrent – namely, situations where
individuals have already committed many atrocities, particularly multiple grave
breaches of the Geneva Conventions.30 A tyrannical leader who has already
ordered multiple genocides and routinely executes prisoners of war without a trial
has little or no incentive to cease these practices. Once a certain threshold is
reached, a leader would suffer no additional punishment from additional
diplomatic sanctions or from the fear of potentially receiving a higher sentence if
tried for these crimes. After all, if a tyrant has already committed enough
atrocities to receive a sentence of life in prison, the marginal cost of committing
additional atrocities is very close to zero. At this point, the tyrant has little
incentive to cease his behavior, other than the threat of an actual war with another
nation that seeks to depose him.
Perhaps these arguments are best illustrated by drawing on an actual case
study where the United States has attempted to disregard the duty to prosecute or
extradite in exchange for peace. In 2003, shortly before commencing the war on
27 See Roht-Arriaza, supra note 16, at 472 (arguing that prosecuting individuals for such atrocities “ensure[s] human rights by deterring both future and current violators”). 28 See generally JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW ch. 2 (explaining punishment’s deterrence effect). 29 Of course, people can reasonably disagree as to whether the deterrence effect caused by a particular punishment is large enough to warrant the passage of the law. However, even in these situations few would argue that the deterrence effect is absolutely zero. For instance, those who oppose the death penalty may argue that any additional deterrence caused by capital punishment is outweighed by other factors. 30 See Scharf, supra note 6, at 5 (acknowledging that these individuals, once they commit enough atrocities to receive the maximum penalty of life imprisonment, no longer have an incentive to seek peace or prevent future breaches).
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Iraq, President George W. Bush, working closely with Middle East leaders such
as President Hosni Mubarak of Egypt, offered Saddam Hussein a compromise.31
Under the terms of this compromise, Hussein and other high-ranking members of
the Iraqi government would voluntarily relinquish power and go into exile;32 Bush
and Mubarak had persuaded Bahrain to provide Hussein with sanctuary.33
Of course, Hussein chose to reject this deal, despite public
pronouncements from Bush that he would invade Iraq and prosecute Hussein as a
war criminal if the deal was not accepted.34 If Hussein had accepted Bush’s exile
proposal, there is little doubt that the agreement, if enforced, would have resulted
in a blatant disregard for the Geneva Conventions’ duty to prosecute or extradite
on the part of the United States and Bahrain.35
Why was the United States willing to breach the Geneva Conventions to
give Saddam Hussein sanctuary? From the perspective of the United States,
Hussein voluntarily stepping down from power would produce the most
economically efficient outcome. As of March 2006, the United States has spent
an estimated $251 billion on the Iraq war;36 as of April 11, 2006, 2,360 American
soldiers have died in the Iraq war, with 206 other coalition deaths, as well as more
than 17,469 American soldiers wounded in action.37 Perhaps even more
31 Emily Wax, Arab Leaders Fail in Last Minute Efforts: Mubarak Blames Iraq, Cautions Coalition: Bahrain Signals that it Would Give Hussein Sanctuary, WASH. POST, Mar. 20, 2003, at A21. 32 Id. 33 Id. 34 Richard Stevenson, Threats and Responses: The President; Bush Gives Hussein 48 Hours, and Vows to Act, N.Y. TIMES, Mar. 18, 2003, at 1. Later that year, President Charles Taylor of Liberia accepted a similar deal. Ryan Izza, Charles at Large, THE NEW REPUBLIC, Apr. 25, 2005, at 10. This deal did not violate the duty to prosecute or extradite because the Liberian war was a purely internal conflict. See Scharf, supra note 6, at 32 (stating that the Taylor exile deal was not a violation of international law because “there is no treaty-based nor customary international law duty to prosecute crimes against humanity or war crimes in an internal conflict”). 35 Id. 36 War in Iraq, http://www.cnn.com/SPECIALS/2003/iraq/forces/casualties/ (last visited May 18, 2006). 37 Id.
Comment: Today’s Living, Tomorrow’s Dead
6:9
significantly, more than 128,000 Iraqis, including more than 70,000 women and
children under the age of twelve, are estimated to have died as a result of the war,
although this figure is in dispute by the U.S. Department of Defense.38
Because Hussein’s exile would prevent significant monetary losses as well
as prevent a substantial amount of human suffering – from combatants and non-
combatants – it is not difficult to see why the United States government offered
this option to Hussein. Of course, one could argue that many of these losses were
primarily caused by the United States for initiating the war in Iraq. While
individuals can reasonably disagree as to whether initiating a war was the proper
response to Hussein’s rejection of the exile offer, there is little doubt that offers of
exile and amnesty have the potential to reduce significant suffering, particularly
when hostilities have already begun. For example, in the past thirty years, sixteen
nations have granted amnesty to individuals accused of committing international
war crimes to provide those individuals with an incentive to cease hostilities.39
These nations, aware of the extent of the atrocities committed by these
individuals, knew that “insisting on criminal prosecutions [could] prolong the
conflict, resulting in more deaths, destruction, and human suffering.”40 By
offering amnesty and refusing to prosecute or extradite, these nations gave
members of hostile regimes a reason to come to the bargaining table and resolve
the current conflict. Without an amnesty arrangement, these individuals would
have nothing to gain from peace, since peace would have most likely lead to a
trial and punishment of life imprisonment. As one government official has stated:
38 Iraqi Civilian Casualties, WORLD PEACE HERALD, July 12, 2005, available at http://www.wpherald.com/storyview.php?StoryID=20050712-122153-5519r. 39 These nations were Angola, Argentina, Brazil, Cambodia, Chile, El Salvador, Guatemala, Haiti, Honduras, the Ivory Coast, Nicaragua, Peru, Sierra Leone, South Africa, Togo, and Uruguay. Steven Ratner, New Democracies, Old Atrocities: An Inquiry in International Law, 87 GEO. L.J. 707, 722-23 (1999). 40 Scharf, supra note 6, at 4.
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“The quest for justice for yesterday’s victims of atrocities should not be pursued
in such a manner that it makes today’s living the dead of tomorrow.”41
B. Counterarguments
Some scholars, such as Michael Scharf, have argued that the duty to
prosecute or extradite does not create inefficient outcomes. In a forthcoming
article, Scharf concedes that there are substantial short-term gains in exile
arrangements or amnesty-for-peace deals.42 For instance, Scharf agrees that these
agreements have been instrumental in creating regime change in the Philippines,
Haiti, Ethiopia, Uganda, and Liberia.43 Because the international community is
very reluctant to sanction the use of force to remove a rogue regime from power
and prosecute its leaders for violations of international humanitarian law, Scharf
contends that the “cooperation of the leaders is needed to bring about peaceful
regime change and put an end to violations of international humanitarian law.”
This is something that cannot be done if those leaders “find themselves or their
close associates facing potential life imprisonment.”44
Despite conceding that there are substantial benefits to exile and amnesty-
for-peace agreements, Scharf argues that nations should not violate their duty to
prosecute or extradite when grave breaches occur. According to Scharf, the
potential long-term costs of these agreements outweigh any short-term benefits.
By granting amnesty or exile to these individuals, Scharf argues, nations provide
them with an opportunity to commit more crimes – perhaps even more serious
crimes – in the future. Scharf cites two historical examples to support this claim.
First, he correctly points out that Saddam Hussein was only able to rise to power
after he had been released from prison preceding the 1968 coup that gave the
41 Anonymous, Human Rights in Peace Negotiations, 18 HUM. RTS. Q. 249, 258 (1996). 42 Scharf, supra note 6, at 5. 43 Id. 44 Id.
Comment: Today’s Living, Tomorrow’s Dead
6:11
Ba’ath party power over the Iraqi government.45 Second, Scharf quotes Adolf
Hitler, who, when persuading his staff to embrace his genocidal policies, inquired:
“Who after all is today speaking about the destruction of the Armenians?”46
However, neither Saddam Hussein nor Adolf Hitler provides an
appropriate analogy. While Hussein had spent some time in prison, as well as a
brief period where he had fled to Egypt to avoid prosecution for an attempted
assassination,47 Scharf gives Hussein too much credit for the 1968 coup. Hussein
did not initiate the 1968 coup. Rather, his mentor and cousin, General Ahmad
Hassan al-Bakr, was primarily responsible for the coup, with Hussein playing
only a minor role in the coup.48 It is very unlikely that Hussein would have ever
risen to such a high level position within the Bat’h party without his strong
connection to al-Bakr, and it is even more unlikely that he would have reached a
position where he would take complete control of the Iraqi government.49
Furthermore, Hussein only forced al-Bakr to resign after he intended to merge
Iraq and Syria and give Hussein’s position to Syria’s president.50 If Hussein had
not risen to power, it is doubtful that a regime with a heavy Syrian influence
would have been any more humane.
Perhaps the most important difference, however, is that Hussein was not
imprisoned for committing a grave breach of the Geneva Convention. Rather,
Hussein had been imprisoned for actions related to an internal conflict, which
45 Id. at 32. 46 Id. at 10. Scharf implies that the lack of prosecution of those responsible for the Armenian genocide during World War I provides Germany with a greater incentive to engage in genocide, for Hitler and others did not believe they would be held accountable for their actions even if they were to lose the war. Id. 47 See The Personal History of Saddam Hussein, http://www.emergency.com/hussein1.htm (last visited May 18, 2006). 48 See Biography of Saddam Hussein of Tikrit, http://www.iraqfoundation.org/research/bio.html (last visited May 18, 2006). 49 See Famous Muslims, http://www.famousmuslims.com/Saddam%20Hussein.htm (last visited May 18, 2006) (explaining the importance of family connections in Saddam’s rise to power). 50 See The Personal History of Saddam Hussein, supra note 48.
Journal of International Law & Policy
6:12
creates no duty to prosecute or extradite.51 In fact, the United Nations and the
International Committee of the Red Cross have supported granting amnesty to
individuals who commit war crimes in internal conflicts as a means of
encouraging peace.52 Scharf himself argues that it was correct for the United
States and the United Nations to offer Liberian President Charles Taylor exile in
exchange for stepping down from power.53 If it is not only permissible, but even
encouraged, to provide amnesty or exile agreements to those who commit crimes
in internal wars, then Scharf’s use of Hussein as an example makes little sense:
Scharf does not appear to object to the type of internal conflict amnesty programs
that would permit individuals such as Hussein to escape punishment for their
crimes.
Scharf’s analogy to Hitler fails for similar reasons. While Hitler’s rise to
power and the Holocaust might have been prevented if the aftermath of World
War I had been handled differently, it is doubtful that punishing those who mass-
murdered the Armenians alone would have had a meaningful impact on
Germany’s post-war development. Historians have established that:
the insecurities of post-World War I Germany and the anxieties they
produced provided an emotional milieu in which irrationality and hysteria
became routine and illusions became transformed into delusions, [and]
Germans, otherwise individually rational, yielded themselves to
pathological fantasies about the Jews . . . the chiliastic system of National
Socialist beliefs could further influence their already distorted sense of
reality.54
51 See Geneva Convention I, supra note 8, Geneva Convention II, supra note 8, Geneva Convention III, supra note 8, Geneva Convention IV, supra note 3. 52 See SANDOZ EL AL., supra note 17, at 1402. 53 Raul Hilberg, The Destruction of the European Jews (1985), reprinted in HARRY REICHER, LAW
AND THE HOLOCAUST: CASES AND MATERIALS I-18 (2002). 54 Id.
Comment: Today’s Living, Tomorrow’s Dead
6:13
Given the state of Germany at the time and what is known about Hitler’s
mindset,55 it seems highly unlikely that punishing those who oversaw the
genocide of the Armenians would have influenced Hitler to take a different course
of action, or would have caused the German people to be less willing to follow
Hitler and the Nazi party.
Scharf further argues that eliminating the duty to prosecute or extradite
may influence individuals who have accepted amnesty or exile agreements to
continue to commit crimes even after being removed from power out of a belief
that they will not be prosecuted. As evidence, Scharf points out that Charles
Taylor, while exiled in Nigeria, ordered the assassination of the president of
Guinea, who had supported the rebels who removed Taylor from office.56 Scharf
argues that, if Hussein had been allowed to go into exile in Bahrain, he could pose
a very significant danger to Iraq’s transition to democracy.57 While recidivism by
such individuals is a concern, it is not so great a concern as Scharf would have
one believe. There are effective methods of punishment for such individuals if
they engage in these sorts of activities while in exile or as recipients of amnesty.
Amnesty from prosecution is not absolute, and a nation-state has the power to
withdraw amnesty from such individuals if necessary.58 For example, Chile has
revoked the immunity it bestowed upon former Chilean President Augusto
Pinochet, and has begun the process of initiating criminal proceedings against
him.59 The United States and the rest of the world community, upon realizing that
an individual whom it has assisted in receiving amnesty or exile has once again
begun to commit crimes, can put significant pressure on the host government to 55 See generally ADOLF HITLER, MEIN KAMPF (1926) (illustrating the extent of Hitler’s hate for the Jews and other groups). 56 Izza, supra note 34, at 10 (discussing Charles Taylor’s actions since his exile). 57 Scharf, supra note 6, at 32. 58 See id. at 33 (stating that amnesty arrangements “are not a permanent right of the recipient, but a privilege bestowed by the territorial state, which can be revoked by a subsequent government or administration”). 59 http://www.asil.org/insights/2005/01/insight050107.htm.
Journal of International Law & Policy
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withdraw immunity and put the individual on trial. In fact, that is exactly what
the United States, as well as the European community, intends to do with regard
to Charles Taylor.60
Scharf’s most compelling argument, however, is that allowing Hussein
and others to go into exile deprives their victims of justice.61 Although it is true
that an exile for peace agreement would result in Hussein never standing trial for
his crimes and never receiving a criminal penalty, this does not mean that his
victims cannot receive compensation for the damage that has been inflicted upon
them. For instance, the participating nations could condition the exile for peace
agreement on Hussein and other individuals paying their victims a large monetary
sum as compensation for their losses. While some victims may not find monetary
compensation as fulfilling as Hussein spending the rest of his life in prison, a
nation must consider not only the costs and benefits of a peace agreement to the
victims, but to all of society. Even though a tyrant’s victims may not be as
satisfied as they would be if military intervention occurs and the tyrant is
eventually prosecuted, this decreased satisfaction is greatly outweighed by the
benefits of preventing another armed conflict and peacefully removing the tyrant
from power.
III. WHY TRADITIONAL INTERNATIONAL LAW ENFORCEMENT MECHANISMS
HAVE FAILED
60 See Izza, supra note 34, at 10; see also Bruce Zagaris, European Parliament Passes Resolution Calling for Action to Ensure Taylor’s Court Appearance, 21 INTERNATIONAL ENFORCEMENT LAW
REPORTER 200 (2005) (stating that the U.N. Security Council is considering a resolution that would pressure Nigeria to surrender Taylor for trial in Sierra Leone). 61 See Scharf, supra note 6, at 32 (“Morally, what right would American negotiators have to trade away the ability of thousands of Hussein’s victims to see the dictator brought to justice?”).
Comment: Today’s Living, Tomorrow’s Dead
6:15
Unlike domestic law, there is no single sovereign entity that has the power
to enforce violations of international law.62 While some international institutions
exist that would provide for the prosecutions of these violations, enforcement
through these international institutions would require that a significant portion of
the world community take collective action – a very rare feat, since “sufficient
political will on the part of the world community” is a prerequisite for such
intervention.63 However, formal prosecutions by such institutions are not the only
means of ensuring compliance with international humanitarian law. In fact,
enforcement of international humanitarian law lies primarily with individual
members of the international community.64
Rudiger Wolfrum has identified thirteen ways through which nations and
other actors may enforce international humanitarian law.65 Though most of
Wolfrum’s arguments are well-reasoned and appear intuitively correct, the fact
remains that none of Wolfrum’s enforcement mechanisms have successfully
induced the United States to comply with the duty to prosecute or extradite. This
section will analyze several of Wolfrum’s enforcement mechanisms and explain
why they have failed to influence the United States government.66
A. Public Opinion
Wolfrum has argued that the manipulation of public opinion is perhaps the
most effective means of enforcing international humanitarian law.67 According to
62 Rudiger Wolfrum, Enforcement of International Humanitarian Law, in THE HANDBOOK OF
HUMANITARIAN LAW IN ARMED CONFLICTS 517 (Dieter Fleck ed., Oxford University Press 1995) (stating that international law has no sovereign). 63 Id. at 518. 64 Id. 65 Id. at 524-50 (summarizing the thirteen ways international humanitarian law can be enforced without the presence of a single international sovereign entity). 66 Because of the limited scope of this Comment, and since some of Wolfrum’s thirteen methods are not directly applicable to this specific situation, I will limit my focus to the eight factors that are most relevant. 67 Id. at 527.
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Wolfrum, “[t]he publishing of a violation of international law may render an
essential contribution to enforcing behavior is in compliance with international
law.”68 Because mass media outlets, such as television and radio, allow news
services to broadcast their reports globally with very little time delay, Wolfrum
believes that news reports about violations of international law can cause
populations to demand that their national leaders comply with international law
requirements.69
Although the mass media may influence the general public to support the
enforcement of certain aspects of international humanitarian law, there is no
evidence that public opinion will always support the blind following of
international law without regard to the consequences of compliance. In general,
public opinion polling has shown that the American public will favor outcomes
that will result in more lives potentially being saved, regardless of whether the
underlying conduct is legal or illegal. For instance, an NBC News poll conducted
on March 29-30, 2003, shortly after the Iraq war began, found that fifty-six
percent of respondents believed that the United States military should “do
everything it can to minimize Iraqi civilian casualties, even if it means taking
longer to achieve [U.S.] objectives.”70 Similarly, in a Newsweek poll conducted
from November 10-11, 2005, fifty-nine percent of respondents stated that they
support the use of torture by U.S. military and intelligence personnel if the torture
results in the prevention of a terrorist attack.71 However, when an ABC
News/Washington Post poll asked respondents a similar question, but did not
mention the possibility that the torture would be inflicted to prevent a terrorist
attack, sixty-four percent of respondents stated that the use of torture by U.S.
68 Id. 69 Id. 70 NBC News/Wall Street Journal Poll, Mar. 29-30, 2003, available at http://www.pollingreport.com/iraq9.htm (last visited June 5, 2006). 71 Newsweek Poll, Nov. 10-11, 2005, available at http://pollingreport.com/terror3.htm (last visited June 5, 2006).
Comment: Today’s Living, Tomorrow’s Dead
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military and intelligence personnel would be unacceptable.72 These differences
are easy to reconcile: while the public generally supports many international
humanitarian law provisions, the public will support violating certain provisions
in specific scenarios where violating international humanitarian law may reduce
aggregate human suffering.
As to the specific question of exile, public opinion polling immediately
before the Iraq war confirms that an overwhelming majority of the American
population would have supported Saddam Hussein going into exile in exchange
for peace. In a Los Angeles Times poll conducted from January 30 to February 2,
2003, when asked if they “[w]ould . . . support or oppose allowing Saddam
Hussein to go into exile in exchange for the U.S. not taking military action against
Iraq,” sixty percent of respondents stated that they would support such an
agreement, while only thirty percent said they would oppose it.73 Another poll,
conducted by CNN and Gallup a week earlier, explicitly told respondents that if
Saddam Hussein went into exile he would not be prosecuted for any of his actions
as leader of Iraq. Sixty-two percent of respondents stated that they would support
Hussein’s exile if it meant peaceful regime change, even if he received immunity
from prosecution.74 Given the American population’s concern for the lives of
civilians, these results are not surprising: while many of these individuals would
certainly prefer to see Saddam Hussein brought to justice, the overwhelming
majority of respondents are willing to let him go into exile in order to prevent the
loss of further life – just like a majority of respondents who normally believe
torture should be prohibited are willing to make an exception for situations where
torture will prevent a terrorist attack. Because the direction of public opinion on
international law issues appears to be strongly influenced by the outcomes of
72 Id. 73 Los Angeles Times Poll, Jan. 30-Feb. 2, 2003, available at http://www.pollingreport.com/iraq10.htm (last visited June 5, 2006). 74 Id.
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following international law, a national leader’s fear of a public outcry would not
serve as an effective enforcement mechanism for the duty to prosecute or
extradite, since the general public would likely support violating this aspect of
international humanitarian law if it means saving lives.
B. Reciprocity & Reprisals
Reciprocity and fear of reprisals are two enforcement mechanisms that
serve a similar function. Wolfrum argues that nations can influence other nations
to comply with international humanitarian law through reciprocal interests: if one
nation does not comply with international humanitarian law, other nations may
not comply with international humanitarian law when dealing with that nation.75
Similarly, nations may not want to violate international humanitarian law when in
a conflict because the opposing nation may retaliate and escalate hostilities.76
Neither reciprocity nor fear of reprisals can effectively enforce the duty to
protect and extradite. Since the Geneva Conventions require that other signatory
nations grant certain protections even to nations that breach the Conventions,77 it
is unlikely that other Westernized or developed nations would stop complying
with international humanitarian law provisions when dealing with the United
States or another nation that has chosen to violate the duty to prosecute or
extradite. Furthermore, the nations that are most likely to not grant reciprocity –
rogue states governed by totalitarian dictatorships that have committed violations
in the past –78 are unlikely to change their behavior. Many of these nations would
75 Wolfrum, supra note 62, at 527 (arguing that reciprocity and reprisals provide nations with incentives to comply with international humanitarian law). 76 Id. 77 See Geneva Convention IV, supra note 3, art. 33 (prohibiting reprisals against protected persons). 78 Cf. Richard T. Cupitt, Target Rogue Behavior, Not Rogue States, 3 THE NONPROLIFERATION
REVIEW 46 (Winter, 1996) available at http://cns.miis.edu/pubs/npr/vol03/32/cupitt32.pdf (stating that rogue states that are not involved in international decision making are unlikely to abide by those rules).
Comment: Today’s Living, Tomorrow’s Dead
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not have granted reciprocity to begin with; some of these nations also may not
consider an offer of amnesty or exile in lieu of war to be a bad thing.
As for fear of reprisals, the entire purpose of an amnesty offer is to prevent
a conflict from occurring, or to end a conflict that is currently taking place. For
example, if Iraq had accepted the United States’ exile offer, the United States
would have little reason to fear a reprisal from Iraq, since Iraq’s acceptance of the
offer would have prevented the Iraq war from even starting.
C. Maintenance of Discipline
Military forces rely on discipline, which involves a strict adherence to
rules and regulations.79 Wolfrum argues that this idea of maintaining discipline
within the armed forces gives nations an incentive to comply with all aspects of
international humanitarian law.80 Nations, by violating international humanitarian
law, would set a bad example for their military and send a message that it is
acceptable to disregard rules and regulations.81
However, it is not likely that the United States military would experience a
large increase in unruliness if the United States government failed to comply with
the duty to prosecute or extradite. As in other legal systems, not all violations of
international humanitarian law are equally egregious; in fact, the Geneva
Conventions themselves make a distinction between grave breaches of the
Conventions and other violations.82 Although one might expect a lack of
discipline or increased lawlessness among American soldiers to develop if the
United States government encouraged or supported certain violations of
international humanitarian law (i.e. if the United States turned a blind eye to the
79 Id. 80 Wolfrum, supra note 62, at 527. 81 Id. 82 Geneva Convention IV, supra note 3, art. 147 (specifying grave breaches).
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situation at Abu Ghraib),83 it is unlikely that a violation of the duty to prosecute or
extradite would result in a loss of discipline or a greater disdain for international
humanitarian law or other laws within the military.
The United States government presumably would explain its rationale for
not complying with the duty to prosecute or extradite. For example, if Saddam
Hussein were granted amnesty from prosecution in exchange for stepping down
from power, the United States government almost certainly would explain that it
is granting Hussein immunity from prosecution in order to prevent war and
greatly minimize human suffering. The typical soldier, even if he or she knows
that allowing Hussein to go into exile violates international humanitarian law,
would not likely view the United States’ actions as highly egregious. Likewise, if
the United States is not disciplined for its violation, it is doubtful that the soldier
would believe that all of international humanitarian law should not be taken
seriously.
D. National Implementing Measures
Wolfrum argues that, to increase compliance with international
humanitarian law, the provisions of international humanitarian law should be
adopted by nations as domestic law, binding upon all individuals within that
nation.84 However, no national implementing measures currently exist in the
United States that would force the United States to comply with the duty to
prosecute or extradite. In Hamdan v. Rumsfeld, the D.C. Circuit Court of Appeals
held that the Geneva Conventions are not self-executing documents, and therefore
U.S. courts cannot enforce their provisions in the absence of legislation that
83 For a summary of the Abu Ghraib situation, see Seymour M. Hersh, Torture at Abu Ghraib, THE NEW YORKER, May 10, 2004, available at http://www.newyorker.com/fact/content/?040510fa_fact. 84 Wolfrum, supra note 62, at 549.
Comment: Today’s Living, Tomorrow’s Dead
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would make the Conventions enforceable in U.S. courts.85 Unless the U.S.
Supreme Court holds differently – unlikely given the current composition of the
Court – there are no enforcement mechanisms within the United States that would
prevent the government from agreeing to an exile arrangement.
E. Dissemination of Humanitarian Law
According to Wolfrum, making individuals aware of what international
humanitarian law entails will make them more likely to follow international
humanitarian law themselves and expect others to abide by it as well.86 However,
as with his discussion of public opinion, Wolfrum’s claims are completely
unfounded. Wolfrum assumes that all or most individuals, upon learning about
the intricacies of international humanitarian law, will blindly demand that all
aspects of international humanitarian law should be followed to the letter and
without exception, even if following international humanitarian law would create
troubling end results. Given the state of American public opinion,87 it seems
highly unlikely that the mere act of telling people that granting Saddam Hussein
amnesty from prosecution in exchange for a peaceful transition to democracy
would violate the Geneva Conventions would cause individuals to completely
change their views. Rather, it seems intuitively more likely that few individuals
would change their views, with most people either not minding the violation of
international humanitarian law or believing that the law should be changed.
F. International Committee of the Red Cross
Wolfrum correctly points out that the International Committee of the Red
Cross has a special status in international humanitarian law, and can help enforce
85 415 F.3d 33 (D.C. Cir. 2005), cert. granted, 74 U.S.L.W. 3108 (U.S. Nov. 7, 2005) (No. 05-184). 86 Wolfrum, supra note 62, at 549. 87 See supra Part III.A (detailing the current state of public opinion on international law).
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international humanitarian law by monitoring compliance with the Geneva
Conventions and notifying nations of violations committed by other nations in
order to initiate a dialogue.88 However, it is doubtful that the International
Committee of the Red Cross could effectively argue that a nation should enforce
the duty to prosecute or extradite in cases of atrocities committed during
international armed conflicts when it has actively encouraged amnesty and exile
programs for individuals accused of atrocities committed during internal armed
conflicts.89 Because of this, it is unlikely that nations would change their intended
course of action. Furthermore, since both of the two conflicting parties would
have mutually agreed to an exile deal in order to end or prevent hostilities, it is
also very unlikely that they would decide not to enter the agreement simply
because the International Committee of the Red Cross informed them nations that
the mutual agreement violated the Geneva Conventions.
G. Diplomatic Intervention
Diplomatic intervention is the most likely way through which the duty to
prosecute or extradite could be enforced. Nations, through the use of economic
sanctions or public rebukes,90 could persuade other nations to not grant amnesty
or exile in exchange for peace. However, diplomatic intervention against an exile
for peace agreement seems unlikely. For instance, the United States did not
experience any negative diplomatic consequences for offering exile to Saddam
Hussein; in fact, several other nations supported the idea, such as Turkey, Saudi
Arabia, and Qatar.91 Such a reaction from other nations is not surprising because
exile offers many significant benefits over going to war or maintaining the status
88 Wolfrum, supra note 62, at 547-48. 89 SANDOZ ET AL., supra note 17, at 1402. 90 Wolfrum, supra note 62, at 548. 91 Ian Urbina, Saddam Hussein and the Highway Blues, ASIA TIMES, Jan. 17, 2003, available at http://www.atimes.com/atimes/Middle_East/EA17Ak02.html.
Comment: Today’s Living, Tomorrow’s Dead
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quo. By going to war, Saddam Hussein may be brought to justice one day, but
not without significant human suffering; however, by maintaining the status quo,
Hussein would not have been prosecuted for his past crimes, and would continue
to terrorize his own people, and potentially become a threat to neighboring
nations. Through exile, the greatest gains are achieved with the least amount of
cost, and nations who truly care about the underlying purpose of international
humanitarian law – reducing human suffering – would see it as the best option.
Certainly, they would not oppose it because it simply because it violates the letter
of the law.
CONCLUSION
The Geneva Conventions’ duty to prosecute or extradite individuals who
have been accused of committing grave breaches of the Geneva Conventions,
while perhaps written with the noblest intentions, does not effectively further the
underlying goals of international humanitarian law. Although individuals who
have committed grave breaches of the Geneva Conventions should be brought to
justice when possible, many tyrants, such as Saddam Hussein, simply cannot be
prosecuted for their atrocities without significant military intervention to first
remove them from power – military intervention that will surely result in tragic
military and civilian casualties even under the best of circumstances, and, under
the worst of circumstances, can provoke the tyrant into committing even more
atrocities before he is actually overthrown.
Exile and amnesty serve an important peacemaking function: exile for
peace deals have the potential to reduce human suffering by instituting regime
change without costly and bloody military intervention. Despite the claims of
scholars such as Scharf, it is not likely that exile for peace deals would create
more harm than good. Although these agreements might at first glance appear to
create incentives for dictators to sanction grave breaches of the Geneva
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Conventions and commit other international humanitarian law violations, one
must remember that the absence of amnesty agreements also creates an incentive
for dictators to continue to commit atrocities, for they would have nothing to lose
by continuing such actions. Therefore, in terms of efficiency, it does not seem
reasonable to allow a mandatory duty to prosecute or extradite to continue to
exist.
Although Wolfrum is incorrect as to the effectiveness of his enforcement
mechanisms when it comes to enforcing all aspects of international humanitarian
law, he is correct that allowing violations of international humanitarian law to go
unpunished can reduce the public and the military’s confidence in international
humanitarian law. While it is unlikely that not sanctioning the United States or
other nations for breaching the duty to prosecute or extradite would significantly
undermine the legitimacy of international humanitarian law, there is no reason to
take such a chance. Therefore, rather than merely ignoring the Geneva
Conventions’ provision requiring the mandatory prosecution or extradition of
those who commit grave breaches of the Geneva Conventions, a more prudent
course of action would be to amend the Geneva Conventions to remove such
inefficient provisions because they result in outcomes contrary to the intended
purpose of international humanitarian law.